Coronavirus (COVID-19), HR Management & Compliance

Changes in the plan to offer relief to workers affected by the spread of coronavirus/COVID-19 have come fast and furious, but the House and Senate appear to have settled on revisions that mean at least some employers will have to provide paid leave to at least some employees.

Source: funnybear36 / shutterstock

The weakened version of the legislation the House passed on March 14 is drawing criticism from both Republicans and Democrats, but the Senate passed the leave bill and President Donald Trump quickly signed it into law. Some voicing complaints fear that workers excluded from the bill won’t heed advice to stay home unless they can keep their paychecks. Others worry the paid time requirements will be too burdensome on struggling employers.

This is likely just a first step in efforts to provide help for both employees and employers. Other bills affecting employers are expected as Congress considers plans for slowing the spread of the disease and damage to the economy.

For example, on March 17, Senator Patty Murray, a Democrat from Washington, introduced a paid leave bill as part of another coronavirus relief package, according to a New York Times report.

Here’s a look at major provisions of the latest legislation.

Advice for Employers

The legislation covers a lot of ground and leaves unanswered questions, but attorneys who advise employers on legal matters urge calm. Since there apparently will be a 15-day grace period for compliance, employers have some time to plan.

“Employers should not be hasty in trying to roll out immediate communications to their workforce on this,” Kara E. Shea, an attorney with Butler Snow LLP in Nashville, Tennessee, says.

Shea says much analysis will be needed and employers should seek guidance on the final version of the bill following its enactment.

“For now, employers who have a lax [Family and Medical Leave Act (FMLA)] protocol should review appropriate FMLA protocols to get ready for what is coming so they will be ahead of the game,” Shea says.

Here’s a look at major provisions of the latest legislation.

Who Is Covered?

The legislation will affect employers with fewer than 500 employees. Larger employers will be excluded, and employers with fewer than 50 employees will be able to apply for an exemption if complying with the requirements will jeopardize the viability of the business as a going concern, according to a summary of the legislation provided by Ryan J. Funk and Susan W. Kline, attorneys with Faegre Drinker in Indianapolis, Indiana.

The revised version of the legislation also says healthcare providers and emergency responders may be exempt from receiving some of the paid leave at the discretion of the U.S. secretary of labor, according to news reports.

Paid Leave Requirements

The legislation will provide employees of covered employers with up to 80 hours of paid sick leave, available for immediate use regardless of how long the employee has worked for the employer, according to the summary from Funk and Kline. Part-timers will be paid on a prorated basis.

The summary says the 80 hours of paid leave will be available for:

Employees who can’t work because they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis. They will get 100% of their pay up to a cap of $511 per day and $5,110 in the aggregate;

Employees who are subject to a government quarantine or have been told by a healthcare provider that they should self-quarantine because of COVID-19. Such employees will get their full pay up to the $511 per day and $5,110 in total caps. Also, employees will receive two-thirds their rate of pay (capped at $200 per day and $2,000 in the aggregate) if they are assisting an individual who must quarantine because of the virus.

Employees who are caring for a child whose school or daycare provider is unavailable because of COVID-19. The pay will be two-thirds the employee’s regular rate and capped at $200 per day and $2,000 in the aggregate.

In addition to the 80 hours of paid sick leave, employees of covered employers will receive up to 12 weeks of leave under a temporary expansion of the Family and Medical Leave Act (FMLA).

The first 10 days of FMLA leave will not be paid, according to the summary, but employees will be paid during those days under the 80 hours of paid sick leave provision of the legislation.

After the first 10 days, covered employees will be paid at two-thirds their regular rate (capped at $200 per day and $10,000 in the aggregate) for the remainder of the leave. This benefit, available for employees who have been employed for at least 30 days, will provide time off to care for an employee’s child if the child’s school or daycare is unavailable because of COVID-19 and the employee is unable to work.

Other Provisions

Funk and Kline’s summary also notes that the law will become effective within 15 days of enactment. The benefits provided in the legislation will expire December 31, 2020.

The law also will prohibit employers from forcing employees to use other forms of leave concurrently with the new and additional leave provided by the legislation. Covered employers also will have to post a notice to employees about their rights once the Department of Labor prepares it.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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